Underpaid H1B and not on payroll


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My employer filed H1B for me on 4/1/2014 (opt to H1B), which has been approved and will be effective on Oct 1. However, there are several issues that may harm my status after Oct 1:


1. I am severely underpaid (even below the state's minimum wage), and my boss will not increase my pay after October.


2. I get paid by checks only, no paystub, no withhold tax. I filled a W-9 form instead of W-4 months ago, so I think my boss will treat me as an independent contractor and issue a 1099 to file individual tax return.


3. My boss holds the i-797 approval notice with I94, because he wants to keep me working for him, However, I have the receipt number to check case status online, and also have the soft version of H1B petition documents.


I am afraid that I will be out of status after Oct 1, and I am planning to quit the job and leave for my homecountry after H1B is effective. My concern is, will I be subjected to Cap again if another employer files a new petition in the future? Will it be sufficient if I only have a receipt number and one or two checks in Oct with a very low wage and no withhold tax?


Please suggest me.


Your reply is highly appreciated.



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On H1, you are an employee, not a contractor.

You need to get paid at least the salary listed on the LCA. No exceptions.

If the employer doesn't want to pay you according to the law, file a complaint with DOL on form WH4. The DOL will make the employer pay you.

You also should search for a better employer. This one is obviously a fraud.

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If your H1b is approved with COS (I-94 attached at the bottom of I-797A approval), then you would be cap-exempt. To know that, you must at least get a copy of that approval notice. As per the law, employer is supposed to give you original I-797A approval. Once you have that notice, you could decide and go back to home country etc.


Even if employer is not withholding the tax, we are supposed to file tax return. If you are doing that, then you are ok.

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